February 23, 2012

Same-sex marriage: All 50 states a likely goal – some day

Voters are overturning court victories, but there is an incremental shift in the mood of a divided public.

By CURTIS TATE McClatchy Newspapers

Though same-sex marriage is racking up victories in state legislatures and federal courts, and gaining public support, especially among younger people, it could be years before gay and lesbian couples can marry in all 50 states.

Same-sex couple
click image to enlarge

When New York’s same-sex law went into effect in July 2011, hundreds of couples legally tied the knot, including Daniel Hernandez, right, and Nevin Cohen, shown holding their wedding certificate in New York City. Increasingly, courts and legislatures are saying same-sex couples shouldn’t be treated differently than opposite-sex couples.

Associated Press file photo

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A judge on Wednesday declared the 1996 Defense of Marriage Act unconstitutional and ordered the federal government to ignore the statute and provide health benefits to the wife of a lesbian federal court employee.

The ruling by U.S. District Judge Jeffrey S. White in California was the first since the Obama administration announced a year ago that it would no longer defend a law it considers discriminatory and reflective of a long history of denying equal rights to gays and lesbians.

White ordered the federal Office of Personnel Management to enroll the wife of Karen Golinski, an attorney for the 9th U.S. Circuit Court of Appeals, in the health benefits program available to other employees of the federal judiciary. The Defense of Marriage Act prohibits the extension of federal benefits to same-sex spouses, and Golinski's wife, Amy Cunninghis, had been repeatedly denied coverage since the couple married in 2008.

"The court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law ... without substantial justification or rational basis," wrote White, who was named to the federal bench a decade ago by President George W. Bush.

-- Los Angeles Times

No current court case will result in same-sex marriage nationwide, legal experts say, and the best near-term outcome for supporters will be that some states allow it, and the federal government will defer to each state on the question of who is married and who isn't.

And in the meantime, opponents of gay marriage vow to take the issue directly to voters -- and the ballot box is the one place where they haven't lost.

"I think the country is likely to be divided on this issue for a long time," said Andrew Koppelman, a law professor at Northwestern University.

Increasingly, courts and state legislatures have decided that same-sex couples shouldn't be treated differently from opposite-sex couples. It's an incremental process, playing out state by state, reflecting the feelings of a changing but still divided public.

On Thursday, the Maryland legislature approved a bill to legalize gay marriage. Gov. Martin O'Malley, a Democrat, said he would sign it, making Maryland the eighth state to give gay and lesbian couples the right to marry.

On Wednesday, a federal district judge in California struck down the 1996 Defense of Marriage Act, which blocks married same-sex couples from receiving a wide variety of federal benefits. It's the second time in two years that a federal court has ruled the law unconstitutional, and an appeals court decision is expected soon on the earlier case.

And earlier this month, a panel of judges on the 9th U.S. Circuit Court of Appeals overturned Proposition 8, the voter-approved California law that took away from gay and lesbian couples the right to marry, which they'd gained only months earlier. Legal experts say that the Supreme Court is likely to have the final say on both laws.

"There are people who would love to throw a Hail Mary pass at the courts and get this decided now, but mainstream advocates have counseled that we need more time to work on the issue state by state," said Steve Sanders, who teaches constitutional and family law at the University of Michigan.

If same-sex marriage opponents are losing in the courts and in the legislatures, they're fully prepared to take the issue to the voters. Every state that has voted on same-sex marriage has voted to reject it, and that's what opponents are counting on in Maryland and Washington state, which earlier this month became the seventh state to allow same-sex marriage. "We'll leave no stone unturned," said Kathy Dempsey, a spokeswoman for the Maryland Catholic Conference, which opposes same-sex marriage.

"This question is ultimately about what the definition of marriage is," said Joseph Backholm, the executive director of the Family Policy Institute of Washington, which is in the process of gathering 121,000 signatures to bring the issue to the ballot in that state in November. "There are relationships that are meaningful to people, but they're not marriage. Marriage is a relationship between a man and a woman. That is not a denigration of other relationships."

There are now tens of thousands of same-sex couples in six states and the District of Columbia who are legally married where they live. But because the federal government only recognizes marriages between one man and one woman, gay and lesbian married couples are denied some 1,138 federal benefits that derive from marriage. They include such matters as Social Security survivor benefits, health insurance coverage, immigration status, veterans benefits, joint income tax filing and estate tax payments.

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